VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 23rd day of August, 2022. PUBLISHED
Stephen James Hood, Petitioner,
against Record No. 0732-21-2
Commonwealth of Virginia, Respondent.
Upon a Petition for a Writ of Actual Innocence
Before Judges Humphreys, Causey, and Senior Judge Clements
Stephen James Hood petitioned this Court seeking a writ of actual innocence under Chapter 19.3 of
Title 19.2 of the Code of Virginia. In 2002, Hood was convicted in the Circuit Court of the City of Richmond
of being an accessory after the fact to abduction and first-degree murder as a principal in the second degree.
Hood’s convictions, however, were vacated by the circuit court following a successful petition for a writ
of habeas corpus based on a claim of ineffective assistance of counsel. Hood nonetheless now petitions
this Court for a writ of actual innocence declaring him factually innocent of the crimes underlying his
now-vacated 2002 convictions.
Hood’s petition therefore raises, as an issue of first impression, whether this Court has the authority to
consider a petition for a writ of actual innocence for convictions that have been vacated. For the reasons
below, we hold that we do not have subject matter jurisdiction over Hood’s petition and accordingly dismiss
his petition.
BACKGROUND
Trial, Appeal, and Habeas Proceedings
In the early morning hours of August 31, 1990, Ilouise Cooper was abducted from her apartment on
Parkwood Avenue in the city of Richmond. Her body was discovered later that day, and an autopsy confirmed that she had suffered several fatal stab wounds. In February 1991, a jury convicted Jeffrey Cox of
burglary, abduction, and first-degree murder.
The FBI, however, had information that strongly suggested that Cox was innocent of the crime and
that Hood participated in Cooper’s killing. Following further investigation by the FBI, Hood was indicted in
2001 for first-degree murder and abduction, and Cox’s convictions were set aside. As part of plea
negotiations, Hood and the government agreed that he would provide a “detailed oral proffer” of the crime
and that none of the statements made in the proffer would be used against Hood in the Commonwealth's
case-in-chief in a criminal prosecution of Hood. Hood stated that he and another man, Billy Madison, were
the perpetrators of the abduction and killing of Cooper in a case of mistaken identity over being cheated in a
drug deal. Hood confessed to driving Madison to Cooper’s apartment, giving Madison Hood’s knives which
he used for his job as a cook, and then taking Madison and Cooper to a secluded area where Madison
murdered Cooper.
Following a bench trial on April 3 and 4, 2002, the circuit court convicted Hood of abduction as an
accessory after the fact (a lesser-included offense of the felony abduction charge) and first-degree murder as a
principal in the second degree. At trial, the Commonwealth used Hood’s proffer in its case-in-chief in what
would later be found to be a violation of the proffer agreement. By final order entered September 13, 2002,
the circuit court sentenced Hood to twelve months’ incarceration for the misdemeanor accessory conviction
and sixty-five years’ incarceration for the first-degree murder conviction.
Hood’s convictions were affirmed on appeal by this Court and the Supreme Court of Virginia. Hood
v. Commonwealth, 269 Va. 176 (2005); Hood v. Commonwealth, No. 2469-02-2 (Va. Ct. App. Feb. 17,
2004). On March 24, 2006, Hood filed a state habeas corpus petition in the circuit court challenging his
convictions on multiple grounds. Hood argued, among other things, that his proffer was false and that his
defense attorney and the Commonwealth coerced him to enter the immunity agreement with false promises.
He also asserted that the Commonwealth “breached [the] cooperation/immunity agreement” and that his trial
-2- counsel rendered ineffective assistance of counsel by failing to object to the introduction of the proffer as
substantive evidence in the Commonwealth’s case-in-chief.
On November 10, 2009, the circuit court granted Hood’s petition for a writ of habeas corpus on the
grounds that trial counsel was ineffective for failing to argue that, under the immunity agreement, the
Commonwealth could not introduce the proffer as substantive evidence in its case-in-chief even if Hood
introduced contrary evidence. The circuit court set aside the convictions and stated for the record that “the
writ vacated the convictions in those two file numbers.” Following the Commonwealth’s unsuccessful appeal
of the circuit court’s ruling, the Commonwealth advised the circuit court that it was electing not to retry Hood
for first-degree murder. Instead, under a written plea agreement, the Commonwealth moved to amend the
original indictment to reflect a charge of attempted abduction, employing the same case number as the
original charge. Hood agreed to plead guilty to the amended charge under Alford in exchange for an
eight-year sentence, which would be satisfied by the time he served during his post-conviction proceedings.
The circuit court accepted Hood’s plea, and Hood was released from custody.
Hood filed this petition on July 30, 2021, alleging various grounds for his writ. Hood contends that
the Commonwealth violated his right to exculpatory evidence and other legal deficiencies in his trial. Hood
also points to statements from witnesses at Cox’s trial and post-conviction proceedings inconsistent with his
guilt. Hood also argues that documents obtained from the FBI via a FOIA request show that there is reason to
doubt his guilt. Finally, Hood contends that his knives were not subject to scientific testing that he contends
has since been conducted and exonerates him.
ANALYSIS
Subject Matter Jurisdiction
Before any court can proceed to the adjudication of a given case, it must first determine whether it has
subject matter jurisdiction over the case. Subject matter jurisdiction “is the authority granted through
constitution or statute to adjudicate a class of cases or controversies.” Gray v. Binder, 294 Va. 268, 275
-3- (2017) (quoting Morrison v. Bestler, 239 Va. 166, 169 (1990)). This Court’s jurisdiction over petitions for
writs of actual innocence derives from Code § 19.2-327.10:
Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony, or the petition of a person who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. The writ shall lie to the circuit court that entered the conviction or the adjudication of delinquency and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals.
(Emphasis added). Accordingly, the threshold question for whether this Court has subject matter jurisdiction
over a petition for a writ of actual innocence is whether a person was “convicted of a felony.” See Turner v.
Commonwealth, 282 Va. 227, 239 (2011). To establish subject matter jurisdiction, a petitioner needs to show
two things: first, that they were convicted of some crime, and second, that the crime of conviction was a
felony.
The Commonwealth argues that for a petitioner to show that he “was convicted of a felony” under
Free access — add to your briefcase to read the full text and ask questions with AI
VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 23rd day of August, 2022. PUBLISHED
Stephen James Hood, Petitioner,
against Record No. 0732-21-2
Commonwealth of Virginia, Respondent.
Upon a Petition for a Writ of Actual Innocence
Before Judges Humphreys, Causey, and Senior Judge Clements
Stephen James Hood petitioned this Court seeking a writ of actual innocence under Chapter 19.3 of
Title 19.2 of the Code of Virginia. In 2002, Hood was convicted in the Circuit Court of the City of Richmond
of being an accessory after the fact to abduction and first-degree murder as a principal in the second degree.
Hood’s convictions, however, were vacated by the circuit court following a successful petition for a writ
of habeas corpus based on a claim of ineffective assistance of counsel. Hood nonetheless now petitions
this Court for a writ of actual innocence declaring him factually innocent of the crimes underlying his
now-vacated 2002 convictions.
Hood’s petition therefore raises, as an issue of first impression, whether this Court has the authority to
consider a petition for a writ of actual innocence for convictions that have been vacated. For the reasons
below, we hold that we do not have subject matter jurisdiction over Hood’s petition and accordingly dismiss
his petition.
BACKGROUND
Trial, Appeal, and Habeas Proceedings
In the early morning hours of August 31, 1990, Ilouise Cooper was abducted from her apartment on
Parkwood Avenue in the city of Richmond. Her body was discovered later that day, and an autopsy confirmed that she had suffered several fatal stab wounds. In February 1991, a jury convicted Jeffrey Cox of
burglary, abduction, and first-degree murder.
The FBI, however, had information that strongly suggested that Cox was innocent of the crime and
that Hood participated in Cooper’s killing. Following further investigation by the FBI, Hood was indicted in
2001 for first-degree murder and abduction, and Cox’s convictions were set aside. As part of plea
negotiations, Hood and the government agreed that he would provide a “detailed oral proffer” of the crime
and that none of the statements made in the proffer would be used against Hood in the Commonwealth's
case-in-chief in a criminal prosecution of Hood. Hood stated that he and another man, Billy Madison, were
the perpetrators of the abduction and killing of Cooper in a case of mistaken identity over being cheated in a
drug deal. Hood confessed to driving Madison to Cooper’s apartment, giving Madison Hood’s knives which
he used for his job as a cook, and then taking Madison and Cooper to a secluded area where Madison
murdered Cooper.
Following a bench trial on April 3 and 4, 2002, the circuit court convicted Hood of abduction as an
accessory after the fact (a lesser-included offense of the felony abduction charge) and first-degree murder as a
principal in the second degree. At trial, the Commonwealth used Hood’s proffer in its case-in-chief in what
would later be found to be a violation of the proffer agreement. By final order entered September 13, 2002,
the circuit court sentenced Hood to twelve months’ incarceration for the misdemeanor accessory conviction
and sixty-five years’ incarceration for the first-degree murder conviction.
Hood’s convictions were affirmed on appeal by this Court and the Supreme Court of Virginia. Hood
v. Commonwealth, 269 Va. 176 (2005); Hood v. Commonwealth, No. 2469-02-2 (Va. Ct. App. Feb. 17,
2004). On March 24, 2006, Hood filed a state habeas corpus petition in the circuit court challenging his
convictions on multiple grounds. Hood argued, among other things, that his proffer was false and that his
defense attorney and the Commonwealth coerced him to enter the immunity agreement with false promises.
He also asserted that the Commonwealth “breached [the] cooperation/immunity agreement” and that his trial
-2- counsel rendered ineffective assistance of counsel by failing to object to the introduction of the proffer as
substantive evidence in the Commonwealth’s case-in-chief.
On November 10, 2009, the circuit court granted Hood’s petition for a writ of habeas corpus on the
grounds that trial counsel was ineffective for failing to argue that, under the immunity agreement, the
Commonwealth could not introduce the proffer as substantive evidence in its case-in-chief even if Hood
introduced contrary evidence. The circuit court set aside the convictions and stated for the record that “the
writ vacated the convictions in those two file numbers.” Following the Commonwealth’s unsuccessful appeal
of the circuit court’s ruling, the Commonwealth advised the circuit court that it was electing not to retry Hood
for first-degree murder. Instead, under a written plea agreement, the Commonwealth moved to amend the
original indictment to reflect a charge of attempted abduction, employing the same case number as the
original charge. Hood agreed to plead guilty to the amended charge under Alford in exchange for an
eight-year sentence, which would be satisfied by the time he served during his post-conviction proceedings.
The circuit court accepted Hood’s plea, and Hood was released from custody.
Hood filed this petition on July 30, 2021, alleging various grounds for his writ. Hood contends that
the Commonwealth violated his right to exculpatory evidence and other legal deficiencies in his trial. Hood
also points to statements from witnesses at Cox’s trial and post-conviction proceedings inconsistent with his
guilt. Hood also argues that documents obtained from the FBI via a FOIA request show that there is reason to
doubt his guilt. Finally, Hood contends that his knives were not subject to scientific testing that he contends
has since been conducted and exonerates him.
ANALYSIS
Subject Matter Jurisdiction
Before any court can proceed to the adjudication of a given case, it must first determine whether it has
subject matter jurisdiction over the case. Subject matter jurisdiction “is the authority granted through
constitution or statute to adjudicate a class of cases or controversies.” Gray v. Binder, 294 Va. 268, 275
-3- (2017) (quoting Morrison v. Bestler, 239 Va. 166, 169 (1990)). This Court’s jurisdiction over petitions for
writs of actual innocence derives from Code § 19.2-327.10:
Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony, or the petition of a person who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. The writ shall lie to the circuit court that entered the conviction or the adjudication of delinquency and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals.
(Emphasis added). Accordingly, the threshold question for whether this Court has subject matter jurisdiction
over a petition for a writ of actual innocence is whether a person was “convicted of a felony.” See Turner v.
Commonwealth, 282 Va. 227, 239 (2011). To establish subject matter jurisdiction, a petitioner needs to show
two things: first, that they were convicted of some crime, and second, that the crime of conviction was a
felony.
The Commonwealth argues that for a petitioner to show that he “was convicted of a felony” under
Code § 19.2-327.10, he must show that he is subject to a valid, final order of conviction. Hood contends that
the mere historical fact of his prior conviction is enough to bring his case under this Court’s original
jurisdiction, regardless of the current validity of that conviction.
The law entertains the legal fiction that certain orders or legal acts, though they undeniably took place
as a matter of fact, are treated as legal nullities with no effect whatsoever. This legal fiction has been
extended to, among others, void marriages, orders entered when a court lacked personal jurisdiction, and ultra
vires orders entered by courts. Kleinfield v. Veruki, 7 Va. App. 183, 186 (1988) (bigamous marriage);
McCulley v. Brooks & Co. General Contractors, 295 Va. 583, 589 (2018) (lack of personal jurisdiction);
Burrelll v. Commonwealth, 283 Va. 474, 476 (2012) (ultra vires order).
When a legal act is void or a legal nullity, courts treat that act as if it had never occurred. For
example, in Nerri v. Adu-Gyamfi, 270 Va. 28 (2005), our Supreme Court considered the legal effect of a
motion for judgment signed by an attorney whose license to practice law had been administratively
-4- suspended. The Court explained that because the attorney did not have an active license, any filing made
during that time was a legal nullity. See Nerri, 270 Va. at 31. Accordingly, the motion for judgment was
“invalid and had no legal effect.” Id. The Court extended this reasoning to hold that the nonsuit filed by the
plaintiff in the case was similarly without effect because “no valid proceeding was pending which could be
non-suited.” Id.
There is no clear Virginia case law on whether a vacated conviction is a legal nullity. In Nelson v.
Colorado, 137 S. Ct. 1249 (2017), however, the United States Supreme Court held that, as a matter of
constitutional due process law, a vacated conviction should be treated as a legal nullity. The Court held that
Colorado statutes violated due process by requiring defendants whose convictions had been reversed or
vacated to prove their innocence by clear and convincing evidence in order to obtain the refund of costs, fees,
and restitution paid under the invalid conviction. Nelson, 137 S. Ct. at 1253. In that case, the defendant was
convicted by a Colorado jury of attempting to patronize a prostituted child and attempted third-degree sexual
assault by force. Id. The trial court imposed an indeterminate prison sentence and ordered him to pay costs,
fees, and restitution totaling $4,413.00. Id. The Colorado Supreme Court reversed one of his convictions on
direct review, and a postconviction court vacated the other. Id. The defendant then sought a refund of the
amounts paid under the prior conviction and argued that requiring him to prove his innocence violated his
rights under the Due Process Clause of the Fourteenth Amendment. Id. The Court held that the Due Process
Clause required that “once those convictions were erased, the presumption of [the defendant’s] innocence was
restored.” Id. at 1255. The Court rebuffed Colorado’s argument that the convictions were voidable rather
than void, citing with approval the state supreme court dissent that “reversal is reversal,” no matter the reason,
“[a]nd an invalid conviction is no conviction at all.” Id. at 1256 n.10 (quoting People v. Nelson, 362 P.3d
1070, 1080 (Colo. 2015) (Hood, J., dissenting)).
This understanding that a vacated judgment is a legal nullity has long been applied by the federal
courts. For example, in United States v. Ayres, 76 U.S. (9 Wall.) 608, 610 (1869), the Court noted that “it is
quite clear, that the order granting the new trial has the effect of vacating the former judgment, and to render -5- it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause.”
See also Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007); Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996);
Miller v. United States, 173 F.2d 922, 923-24 (6th Cir. 1949).
We see no reason to depart from this line of reasoning. Although it is a historical fact that Hood was
convicted of murder in 2002, the writ of habeas corpus vacated that conviction, and therefore, as a matter of
law, Hood’s conviction was a legal nullity and “no conviction at all.” Nelson, 137 S. Ct. at 1256 n.10
(quoting 362 P.3d at 1080)). Virginia law is clear that legal nullities should be treated as though they never
occurred. See Nerri, 270 Va. at 31. Hood’s vacated convictions are legal nullities, and Hood was therefore
not “convicted of a felony” under Code § 19.2-327.10. We therefore do not have subject matter jurisdiction
to adjudicate Hood’s petition for a writ of actual innocence.1
CONCLUSION
Because we lack the subject matter jurisdiction to adjudicate Hood’s petition for a writ of actual
innocence, we dismiss his petition.
This order shall be published.
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court
Deputy Clerk
1 We note that this Court lacks jurisdiction over Hood’s petition as it relates to his accessory after the fact conviction for a second reason. This Court can only adjudicate petitions for writs of actual innocence where the crime of conviction is a felony. On the date of Hood’s conviction, Code § 18.2-19 established that the crime of being an accessory after the fact to abduction was punished as a misdemeanor. As a result, we are also without subject matter jurisdiction to consider Hood’s petition as it relates to his accessory after the fact conviction. -6-